Tufts v. Newton

117 Mass. 68, 1875 Mass. LEXIS 153

Opinion

Gray, C. J.

A party petitioning to establish the truth of exceptions disallowed by the presiding judge must strictly comply with the rule of court. This was determined in the earliest case upon the subject; Phillips v. Hoyle, 4 Gray, 568 ; and has ever since been considered well settled. Priest v. Groton, 103 Mass. 530, 536. The 28th Rule of this court requires the petition to be verified by affidavit, and to be filed within twenty days after notice of the disallowance of the exceptions. 104 Mass. 564. In the present case, the affidavit is merely to the truth of the exceptions, and there is none to the truth of the allegations in the petition. The defect cannot be cured by oral testimony, nor by a new affidavit made after the expiration of the twenty days.

Petition dismissed.